Javan Deloney v. TERRY McCANN

* After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 18, 2007*
Decided April 18, 2007
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-2297
JAVAN DELONEY,
Petitioner-Appellant,
v.
TERRY McCANN,
Respondent-Appellee.
Appeal from the United States
District Court for the Northern
District of Illinois, Eastern Division.
No. 04 C 6601
Matthew F. Kennelly,
Judge.
O R D E R
Javan Deloney filed a petition for habeas corpus, 28 U.S.C. § 2254, claiming
that the prosecution suborned perjury during his murder trial in Illinois state court.
The district court dismissed the petition as untimely. More than ten business days
after the entry of judgment, Deloney filed a “Petition for Rehearing,” which the
district court construed as a motion under Federal Rule of Civil Procedure 60(b) and
denied. Deloney filed a notice of appeal, but in a previous order we concluded that
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 06-2297 Page 2
the notice was untimely as to the order dismissing the § 2254 petition and limited
the appeal to review of the order denying relief under Rule 60(b).
Deloney was convicted of three counts of first-degree murder, 720 Ill. Comp.
Stat. 5/9-1, after he participated in two drive-by shootings that killed three
members of a rival gang. He was sentenced to life in prison. His convictions were
affirmed on direct appeal, People v. Deloney, No. 1-95-0199 (Ill. App. Ct. Feb. 14,
1997), and on June 4, 1997, the Supreme Court of Illinois denied leave to appeal,
People v. Deloney, 684 N.E.2d 1338 (Ill. 1997). On November 21, 1997, Deloney filed
a state postconviction petition. See 725 Ill. Comp. Stat. 5/122-1. Although it took
the state courts nearly seven years to fully resolve that petition, the order denying
it became final on October 7, 2003, when the Supreme Court of Illinois denied leave
to appeal, People v. Deloney, No. 96793 (Ill. Oct. 7, 2003). Exactly one year later, on
October 7, 2004, Deloney turned to the federal courts and filed his § 2254 petition.
The state moved to dismiss the petition on the ground that Deloney filed it
outside the one-year statute of limitations. See 28 U.S.C. § 2244(d)(1)(A).
According to the state, Deloney’s convictions became final on September 2, 1997, 90
days after the state supreme court declined to review the order affirming those
convictions on direct appeal (during which time Deloney could have filed a petition
for certiorari review in the United States Supreme Court, but did not). After that,
the state asserted, Deloney waited one year plus eighty days before he filed his
§ 2254 petition (excluding the time his postconviction petition was pending in the
Illinois courts, see id. § 2244(d)(2)).
In his response Deloney argued that the eighty days that elapsed between
the date his convictions became final and the date he filed his state postconviction
petition should not factor into the one-year deadline because he did not obtain the
factual predicate for his perjury claim——an affidavit from eyewitness Brenda Hall,
who recanted her trial testimony identifying Deloney as one of the gunman——until
August 1998. He also protested that denying his petition as untimely would
constitute a miscarriage of justice, and he argued that the limitations period should
be subject to “equitable tolling” because, as evidenced by Hall’s affidavit, he was
innocent.
In its reply, the state argued that Deloney's assertion of actual innocence
could warrant equitable tolling only if he could show that "some action or inaction"
on the part of the state prevented him from discovering the facts showing his
innocence or, at the very least, that he could not have discovered those facts sooner
through reasonable diligence. See Gildon v. Bowen, 384 F.3d 883, 887 (7th Cir.
2004). Deloney had made no such showing in his response to the state’s motion to
dismiss, so the district court gave him another opportunity. The court directed
Deloney to explain whether he could have obtained Hall’s affidavit earlier, and

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No. 06-2297 Page 3
when Deloney filed nothing in response, the court dismissed his petition as
untimely.
Judgment was entered on August 25, 2005. On September 21 the court
received what Deloney captioned as a “Petition for Rehearing.” In that submission,
which Deloney signed on September 16, he asserted that he was misled by an
earlier minute order that set a briefing schedule on the state’s motion to dismiss
without mentioning any demand for more information and noting that the court
would rule by mail. Deloney also asserted that he could not have filed his § 2254
petition before obtaining Hall’s affidavit, that he worked “assiduously” to obtain it,
and that he could not be faulted for not obtaining the affidavit sooner. Because
Deloney’s postjudgment motion was filed more than ten business days after the
entry of judgment, the district court construed it as a motion under Rule 60(b) to set
aside the judgment. The court denied the motion, rejecting Deloney’s assertion that
he was confused as to the necessity of submitting further information about Hall’s
affidavit because the order directing him to do so “could hardly have been clearer.”
The district court also rejected Deloney’s “belated” explanation concerning his
efforts to obtain the affidavit because he should have offered that explanation before
the entry of judgment.
As an initial matter, we lack jurisdiction to review the district court’s denial
of collateral relief because Deloney did not file a timely appeal. Deloney had thirty
days from the entry of judgment to file a notice of appeal, Fed. R. App. P. 4(a)(1)(A),
but he did not file until more than six months later. Although a motion under
Federal Rule of Civil Procedure 59(e) filed within ten days after the entry of
judgment will toll the deadline to file a notice of appeal, Fed. R. App. P.
4(a)(4)(A)(iv), Deloney’s motion is deemed to be one under Rule 60(b) because it was
not even finished until September 16, fifteen business days after the entry of
judgment. See Talano v. Northwestern Med. Faculty Found., Inc., 273 F.3d 757, 762
(7th Cir. 2001). And unlike a Rule 59(e) motion, a Rule 60(b) motion does not toll
the time for appealing the underlying judgment. Fed. R. App. P. 4(a)(4)(A)(vi).
Accordingly, because Deloney’s notice of appeal was timely only with regard to his
Rule 60(b) motion, we limited the appeal to the order denying that motion.
Rule 60(b) permits a district court to relieve a party from a judgment on
several grounds, including mistake, excusable neglect, or newly discovered
evidence. Fed. R. Civ. P. 60(b). Rule 60 relief is available to a petitioner seeking to
reopen a previously dismissed action under § 2254, so long as the motion does not
“present a revisitation of the merits,” a concern not raised here. See Gonzalez v.
Crosby, 545 U.S. 524, 534 (2005); see also Arrieta v. Battaglia, 461 F.3d 861, 864
(7th Cir. 2006). We review a district court’s denial of relief under Rule 60(b) for
abuse of discretion, Arrieta, 461 F.3d at 864, which we will find only if there is a
substantial danger that the dismissal was fundamentally unjust. McCormick v.

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City of Chi., 230 F.3d 319, 327 (7th Cir. 2000). We find no such danger here.
Deloney, in his postjudgment motion, sought relief from the judgment on the ground
of excusable neglect: he said he was unaware that he was supposed to submit
additional information. But the district court did not abuse its discretion in
concluding that its order directing Deloney to provide that information was clear:
“Petitioner is directed to file, on or before 8/8/05, a surreply identifying any and all
reasons why he did not obtain the affidavit of Brenda Hall at an earlier date.” The
district court was not required to accept Deloney’s proffered excuse, for it is well
settled that “neither ignorance nor carelessness on the part of the litigant or his
attorney provide grounds for relief under Rule 60(b)(1).” McCormick, 230 F.3d at
327. Nor do we find an abuse of discretion in the district court’s refusal to entertain
Deloney’s belated explanation concerning his prior unfruitful efforts to obtain Hall’s
affidavit; “Rule 60(b) . . . does not provide relief simply because litigants belatedly
present new facts or arguments after the district court has made its final ruling.”
Jinks v. AlliedSignal, Inc., 250 F.3d 381, 387 (6th Cir. 2001).
Finally, we note that Deloney has never argued that he was unaware of
Hall’s recantation until he obtained her affidavit. Indeed, more than eight months
before he received the affidavit, he alleged in his state postconviction petition that
prosecutors intimidated and coerced all of the witnesses who testified at his trial,
including Hall. Hall’s affidavit was merely one additional piece of evidence
supporting that claim, and even Deloney describes the affidavit as evidence that
“solidified” the claim. The statute of limitations began running when Deloney
became aware of the facts giving rise to his claim, not when he obtained the
evidence to support it. See, e.g., Escamilla v. Jungwirth, 426 F.3d 868, 871 (7th Cir.
2005); Johnson v. McBride, 381 F.3d 587, 588-89 (7th Cir. 2004). That he did not
have an affidavit in hand was not a valid excuse for waiting to bring his § 2254
petition.
Accordingly, we AFFIRM the denial of Deloney’s motion.

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